Morgan v. Twitty

64 Ga. 426

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Jackson, Justice.

The bill of exceptions brings up the refusal of the chancellor to-grant .an injunction. . It appears therein that the chancellor had before him in addition to answers of the defendants certain affidavits. These affidavits are referred to in the bill of exceptions 'in the following language, as the evidence which the chancellor had before him, to-wit: “The bill filed in said case by complainant and amendment thereto, with the affidavits of E. H. Shackelford, W. H. Brimbury, H. C. Dasher, James Morgan, and transcript of city council record of Camilla, Georgia, and the answers and affidavits attached thereto of the defendants, which bill, amendment, answers and affidavits compose the record in this case, and are hereby referred to and made part of this bill of exceptions.” The certificate of the chancellor is dated June 13, 1879, and that of the clerk to the record July 1, 1879.

1. According to the ruling of this court in Colquitt, governor, vs. Solomon, 61 Ca., 492, and the case of City of Atlanta vs. Glover, Ib., 337, the writ of error must be dismissed. These affidavits constitute no part of the record of the case, and should have been exhibited to the bill of exceptions, and identified by the judge’s signature on each of them as the identical affidavits which were before him, or incorporated in the bill of exceptions with the certificate of the judge after them, or, at all events, should have borne his signature when filed in the clerk’s office.

2. Moreover, if the record could be referred to in order to identify the affidavits, the record appears to have been made up on the 1st of July, whilst the bill of exceptions is dated the 19th of June; so that when the judge signed the bill of exceptions, it cannot be inferred that he referred to the transcript sent up here in this case, and the case of The City of Atlanta vs. Glover, before cited, covers this in that respect.

This court cannot review the decision of the chancellor unless it has all the evidence before it which he had, and it must appear from the bill of exceptions incorporated therein, or exhibits thereto with the sign manual of the judge thereon, what identical evidence was before him in the form of affidavits when he pronounced judgment for or against the application for injunction. See also Woolbright vs. Wall, 60 Ga., 595.

The writ of error is dismissed.